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Filed 8/29/13 P. v. Herrera CA1/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

ALFREDO ARIAS HERRERA, 

 Defendant and Appellant. 

 A134497 

 (Mendocino County 

 Super. Ct. Nos. 

 SCUK-CRCR-11-0018064 & 

 SCUK-CRCR-11-0018468) 

In re ALFREDO ARIAS HERRERA, 

 on Habeas Corpus. A136618 

 Defendant Alfredo Arias Herrera appeals from a judgment entered after his plea of 

guilty to the felony offenses of possession of a controlled substance for sale (Health & 

Saf. Code, § 11378) and attempted witness intimidation (Pen. Code, § 136.1, subd. 

(a)(2)). He was sentenced to the upper term of three years for the attempted witness 

intimidation conviction, to be served concurrently to the middle term of two years for the 

drug conviction. On appeal Herrera seeks a new sentencing hearing on the ground the 

trial court made misstatements about the underlying prosecution giving rise to the 

attempted witness intimidation offense. He also contends on direct appeal and in a 

petition for a writ of habeas corpus1

 that his trial counsel was ineffective for failing to 

 

1

 We consolidated the petition with this appeal. 
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object to the trial court’s misstatements. We conclude Herrera’s contentions do not 

require reversal and a remand for resentencing. Accordingly, we affirm the judgment and 

deny the petition for writ of habeas corpus, and the related request for judicial notice of 

the record on appeal. 

FACTS 

A. Background 

On October 21, 2011, the district attorney filed two informations. In case No. 11-

0018064, Herrera was alleged to have committed the felony offenses of transportation of 

methamphetamine (Health & Saf. Code, § 11379, subd. (a)), and possession of 

methamphetamine for sale (Health & Saf. Code, § 11378), arising from an incident on 

June 16, 2011. In case No. 11-0018468, Herrera was alleged to have committed the 

felony offense of attempted witness intimidation (Pen. Code, § 136.1, subd. (a)(2)), with 

special allegations that the offense was committed on August 14, 2011, with “force 

and/or . . . the threat of force or violence upon the witness, or any third person,” and that 

at the time of the offense Herrera was released from custody on the prior drug offenses. 

1. Change of Plea Proceeding 

 At a change of plea proceeding, Herrera agreed to plead guilty to the felony 

offenses of possession of a controlled substance for sale in case No. 11-0018064 and 

attempted witness intimidation in case No. 11-0018468. In exchange for the pleas, the 

prosecutor agreed to dismiss the remaining charge in case No. 11-0018064 and the 

special allegations in case No. 11-0018468. As to the factual basis for the drug offense, 

counsel stated that on June 16, 2011, Herrera had been pulled over as he was driving a 

car. A search of the car revealed about two ounces of methamphetamine in two separate 

packages. As to the factual basis for the attempted witness intimidation offense, counsel 

stated that on August 14, 2011, Herrera went to see a witness in a domestic dispute 

incident, and during a discussion the witness felt intimidated because Herrera grabbed 

him by the shoulders, shook him, and told him he better change his story or he would get 

beat up. Herrera understood he could be sentenced to state prison for a maximum term of 

three years and eight months for both convictions. 
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2. Sentencing Proceeding

 Before sentencing, Herrera’s trial counsel filed a statement in mitigation for each 

case, and the probation department officer filed a report for each case. In his statements 

of mitigation, defense counsel alleged, in pertinent part, that all of Herrera’s criminal 

conduct was a consequence of his methamphetamine addiction; he had never participated 

in any drug treatment program, but since his current convictions he had on his own, 

applied for and been accepted to a drug treatment program; he requested the opportunity 

to participate in treatment; and he was greatly remorseful for his criminal behavior. 

 In the probation department reports, the probation officer included the following 

information. Twenty-seven-year-old Herrera was facing sentence on his second and third 

felony convictions. Herrera had concededly used methamphetamine on a daily basis for 

the past 10 years, and considered himself an alcoholic, having consumed alcohol on a 

daily basis for the past five years. He never sought any treatment for his addictions 

because he was not motivated to do so. However, since his current convictions, he was 

ready to take responsibility for his behavior because he now had children. At the time of 

the commission of the offenses, Herrera was on two grants of summary probation for 

misdemeanor convictions for driving under the influence (2008) and driving with a 

suspended license (2010), he had served a prior 13-month prison term for a felony drug 

offense in the State of Washington (2004), and had a prior misdemeanor conviction for 

driving without a valid driver’s license (2009). 

 The probation officer described the factual circumstances of the two cases based 

on police reports and the statement of the intimidated witness. On June 16, 2011, two 

police officers stopped Herrera while he was driving his car. A police dog alerted the 

officers to the presence of a controlled substance in the car. A search of the car revealed 

an open box of sandwich bags, a digital scale, and two sandwich bags containing a total 

of about 55 grams of methamphetamine. A search of Herrera’s person revealed a glass 

pipe commonly used for smoking methamphetamine, and $2,253.30. After Herrera was 

released on bail on the drug offenses, he was arrested two months later after he threatened 

a neighbor who had witnessed a domestic violence dispute between Herrera and his 
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girlfriend. On August 10, 2011, Herrera’s neighbor reported the domestic violence 

dispute to the police. The police arrested Herrera based on the neighbor’s statements and 

other physical evidence. Four days later, on August 14, 2011, Herrera was released on 

bail on the domestic violence offense and confronted the neighbor at his neighbor’s home 

at 9 p.m. in the evening. Herrera said the neighbor needed to change the statement he had 

given to the police and complete a different written statement. The neighbor refused 

because he did not want problems with law enforcement. Herrera said that if the 

neighbor did not do what was asked, Herrera would go to the police and make a report 

that the neighbor was abusing his children so they would be taken away by “CPS.” The 

neighbor continually stated he did not want to lie to the police, but Herrera said the 

neighbor “ ‘would be sorry’ ” if he did not. Before he left, Herrera pointed his hand and 

made a gesture with it, simulating the firing of a handgun at the neighbor. The neighbor 

was extremely concerned and believed Herrera would carry out his threats because of the 

domestic violence incident he had witnessed and the rumors of Herrera’s involvement in 

the use and sale of illegal drugs. 

 The probation officer recognized the egregiousness of the attempted witness 

intimidation offense, but noted that Herrera claimed he made a serious error in judgment, 

which was exacerbated by his drug use. Herrera claimed that at the time of the August 14 

incident, he was under the influence of methamphetamine, he never intended to act on his 

threats, and his motivation was simply to help his girlfriend regain custody of her 

daughter who had been taken by child protective services. The probation officer 

conceded that, “[t]ypically, in a case involving such a significant amount of 

methamphetamine, as well as several other aggravating circumstances (prior felony drug 

offense and victim intimidation),” he would not hesitate to recommend a state prison 

commitment. However, in this case, the probation officer was recommending probation, 

which was a “bit unusual,” and “with some reservation,” because of Herrera’s “frankness 

and accountability regarding his behavior,” and his apparent sincere desire to change his 

behavior, having already taken the initiative of applying for and being accepted in a 

residential drug treatment program. The probation officer also opined that Herrera’s 
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“remorse did not feel forced or artificial,” and he seemed “to really want to be a good 

father to his children.” 

 Before imposing sentence on January 20, 2012, the trial court acknowledged 

having read and considered (1) the probation reports on each case, and (2) the defense 

counsel’s sentencing statement in mitigation submitted on each case. The court then 

informed the parties of its tentative sentence “not to follow the probation officer’s 

recommendation” as the court believed that the combination of the cases required a 

prison term. As to the drug conviction, the court commented that “this is an enormous 

amount of methamphetamine. And Mr. Herrera has a prior conviction from 2004, a 

felony conviction from Washington State where he was sent to prison for drug 

distribution. He was on probation . . . in another matter when he committed this 

offense. . . . There is no indication in the record that Mr. Herrera committed the [current 

drug offense] to support his own habit” based on the quantity of drugs. As to the 

attempted witness intimidation conviction, the court again commented that at the time of 

the commission of this offense of a “violent nature,” Herrera was “already on [a] grant of 

summary probation when he committed this offense,” and “he had a felony drug offense 

pending. And the combination of the two events happening so [close] in time . . . does 

not merit a grant of probation.” 

 In response to the court’s comments, Herrera’s counsel stated: “Your Honor, to 

put it simply my client is an addict, has been an addict for most of his adult life. The 

behavior in the intimidation of a witness charge all relates to the underlying matter, 

which is possession of methamphetamine for sale. He’s a typical methamphetamine 

abuser who sells in order to maintain his own habit. That is his pattern. And as the court 

indicated it is even reflected back to the Washington disposition.” Defense counsel asked 

the court to give Herrera one final opportunity to turn his life around by allowing him to 

participate in a drug treatment program. The trial prosecutor argued the commission of 

the two offenses did not demonstrate conduct by someone who was “just simply an 

addict,” but rather a criminal who had had multiple chances. 
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 The court acknowledged that Herrera might want to and had to participate in a 

drug program because of his desperate position, but the court could not “overlook the 

cost of public safety for this amount of methamphetamine, especially [as Herrera had] 

been in prison.” “[A]nd then when you are out of custody on this case, you go and 

intimidate a neighbor using threatening gestures, you are dissuading them from being a 

witness in the underlying narcotics case. This is not a probation case. . . . [¶] . . . [¶] And, 

[defense counsel], I appreciate your comments. I heard your comments. I am 

considering your comments. I think that Mr. Herrera could . . . benefit from a residential 

treatment program. But the cost to the public of his conduct is f[ar] greater than a 

residential program can offset at this time. I think he’s a threat to society based on his 

violent conduct and dissuading a witness or attempting to dissuade a witness in this 

action. So I am going to deny probation.” The court then asked Herrera if he wanted to 

make a statement. Herrera replied that his criminal conduct was a consequence of his 

drug use, and he wanted “one chance” at treatment because he now had children and did 

not want them to see him in prison. 

 When actually imposing sentence for the attempted witness intimidation 

conviction (the designated principal offense), the court denied probation for the following 

reasons: “The defendant inflicted extreme emotional trauma on the victim in this matter; 

the defendant was an active participant in the underlying offense; he has a prior felony 

drug-related conviction from the State of Washington for which he was sent to prison; he 

was on a grant of summary probation when this matter occurred; he actually had another 

pending felony that had not been yet resolved when this incident occurred; the underlying 

conduct of attempting to dissuade a witness who was a neighbor caused the neighbor to 

be severely traumatized; I don’t believe the defendant can successfully complete 

probation due to a severe [poly] substance paradigm; while he is remorseful and has 

recognized that he suffers from [a] serious drug addiction, I find the defendant to be at 

this time a threat to society.” When imposing a prison term of three years, the court 

stated it was “selecting the aggravated term in part because [Herrera] ha[d] a pending . . . 

drug prosecution when he committed this offense. The witness intimidation was directed 
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at a witness in that matter and caused the witness to . . . have severe emotional trauma. I 

think that the conduct in this case was especially egregious in actualizing the intimidation 

behavior. I think the case merits an aggravated term.” When sentencing Herrera for the 

drug conviction, designated as the subordinate offense, the court denied probation for the 

reasons previously stated, and imposed a concurrent two-year (middle) term without 

further comment. 

DISCUSSION 

Herrera correctly contends that on two occasions during the sentencing proceeding 

the trial court mistakenly stated that the underlying prosecution giving rise to the 

attempted witness intimidation offense was the consolidated drug prosecution. He then 

contends the court might have imposed probation or the lower term of two years (Pen. 

Code, § 18, subd. (b)) if it had remembered that the attempted witness intimidation arose 

from an unrelated domestic violence incident. For the reasons we now discuss, we 

disagree and conclude reversal and a new sentencing hearing is not required. 

 The parties present arguments regarding whether Herrera’s appellate contention is 

properly before this court. However, we need not address these arguments. Even 

assuming Herrera’s failure to object in the trial court did not forfeit his claim, he has not 

demonstrated prejudicial error under any standard of harmless error review (Chapman v. 

California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836), and he 

has not shown that the sentence was imposed in violation of his constitutional due 

process rights. 

 In determining whether the trial court’s misstatements were prejudicial, we 

consider Herrera’s failure to bring the error to the court’s attention at any time during the 

sentencing proceeding. (See Wainwright v. Witt (1985) 469 U.S. 412, 431, fn. 11 

[“failure to speak in a situation later claimed to be so rife with ambiguity as to constitute 

constitutional error is a circumstance we feel justified in considering when assessing 

[defendant’s] claims”].) After the court’s first misstatement, Herrera was given an 

opportunity to make a statement at which time he could have mentioned the court’s 

misstatement. Had Herrera or his counsel objected on the ground now asserted on 
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appeal, the court could have easily clarified its sentencing choices. Rather, the record 

indicates neither Herrera, defense counsel, nor the trial prosecutor, were aware of the 

court’s misstatements, and consequently no one objected to them. Such omission 

strongly “suggests that ‘ “the potential for [prejudice] argued now was not apparent to 

one on the spot” ’ ” (People v. Young (2005) 34 Cal.4th 1149, 1203), thereby supporting 

a finding that the misstatements were neither material nor determinative of the court’s 

sentencing choices. 

 In all events, we conclude any potential for prejudice “seems minimal even in 

hindsight.” (People v. Keenan (1988) 46 Cal.3d 478, 535.) Herrera contends the court’s 

confusion about the facts of the attempted witness intimidation offense caused it to view 

the motivation for the offense as aggravating rather than mitigating, and resulted in the 

court overlooking three notable mitigating circumstances: (1) the offense was not likely 

to recur because he was motivated by the unusual and distressing circumstance of the loss 

of custody of his girlfriend’s child and his effort to regain custody, (2) the impact of his 

drug addiction on the domestic violence dispute (which led to no charges being filed 

against him) and his response in threatening the witness, and (3) his remorse. However, 

the trial court was not required to “weigh aggravating and mitigating circumstances” 

(People v. Sandoval (2007) 41 Cal.4th 825, 847), but rather could rely on one single valid 

aggravating factor to both deny probation and impose an upper term (People v. Scott 

(1994) 9 Cal.4th 331, 350, fn. 12), and disregard all mitigating factors without comment

(People v. Lamb (1988) 206 Cal.App.3d 397, 401). Despite the misstatements, the 

court’s sentencing choices in this case did not exceed “the bounds of reasons, all of the 

circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) 

 We are not persuaded by Herrera’s contentions that the court’s sentencing choices 

were or must have been “inevitably influenced” by its mistaken belief regarding the 

underlying criminal prosecution giving rise to the attempted witness intimidation offense. 

The court’s mistaken belief regarding the attempted witness intimidation offense was not 

the principal reason for its sentencing choices. Instead, the court enunciated many factors 

supporting its sentencing choices - including Herrera’s actual criminal behavior giving 
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rise to the charged offense of attempted witness intimidation, as well as his criminal 

background and uncontrolled drug addiction and alcoholism that made him a threat to 

society. Because the court’s denial of probation and imposition of an aggravated term 

were supported by appropriate aggravating factors unrelated to the circumstances of the 

current offenses, we can be reasonably certain its misstatements about the attempted 

victim intimidation offense were not determinative. (Cf. People v. Cluff (2001) 87 

Cal.App.4th 991, 1002-1005 [resentencing required because evidence did not support 

“critical finding” made by trial court in denying defendant’s Romero motion to strike 

prior conviction].) On this record, it is not reasonably probable the court would have 

chosen to impose probation or a lesser prison term had it known that some of its 

comments were not supported by the record. (People v. Price (1991) 1 Cal.4th 324, 492.) 

If we remanded the matter, the court would merely refrain from repeating its 

misstatements, and properly impose the same sentences. (See People v. Osband (1996) 

13 Cal.4th 622, 732; People v. Douglas (1995) 36 Cal.App.4th 1681, 1692.) 2

 

 We also reject Herrera’s contentions that the court’s misstatements violated his 

state and federal constitutional due process rights. The cases cited by Herrera hold only 

that resentencing is required when a trial court demonstrably relies on or gives emphasis 

to an improper factor that is material or determinative of its sentence choices. (See 

United States v. Tucker (1972) 404 U.S. 443; United States v. Borrero-Isaza (9th Cir. 

1989) 887 F.2d 1349, 1352; United States v. Safirstein (9th Cir. 1987) 827 F.2d 1380, 

1385; United States v. Weston (9th Cir. 1971) 448 F.2d 626, 634; People v. Eckley (2004) 

123 Cal.App.4th 1072, 1081; see also People v. Belmontes (1983) 34 Cal. 3d 335, 348, 

fn. 8 [sentencing court does not exercise “ ‘informed discretion’ ” if “sentence is or may 

have been based on misinformation regarding a material aspect of a defendant’s 

record”].) Here, as noted, the court’s sentencing choices were not based exclusively, or 

 

2

 Because there has been no showing of prejudicial error, Herrera’s related claim 

raised on direct appeal and in his petition for a writ of habeas corpus that his trial counsel 

was ineffective for failing to object to the court’s misstatements must fail. (See 

Strickland v. Washington (1984) 466 U.S. 668, 697; People v. Fairbank (1997) 16 

Cal.4th 1223, 1241.) 
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even predominately, on its mistaken belief that the attempted witness intimidation offense 

arose from the consolidated drug prosecution. Instead, the court relied on a myriad of 

other aggravating factors, including that Herrera had a prior felony drug conviction for 

which he had served a prison term, and at the time he committed the attempted witness 

intimidation offense he was on summary probation and had a pending drug prosecution. 

The court reasonably found unpersuasive Herrera’s request to participate in a residential 

drug treatment program. “Where . . . the substance abuse problem has led to behavior 

described as aggravating factors in [California Rules of Court, rule 4.421(b)], such as a 

pattern of criminal conduct dangerous to society, violations of parole or probation, and 

unsatisfactory performance on probation or parole, the addiction or alcoholism is 

properly considered as part of those aggravating factors because it suggests a high 

probability of further depredations on the public whenever the defendant is again out of 

custody.” (People v. Reyes (1987) 195 Cal.App.3d 957, 964.) Given the court’s 

sentencing comments in their entirety, we are confident that there is no reasonable 

possibility the court would have imposed a different sentence but for its mistaken belief 

that the attempted witness intimidation offense arose from the consolidated drug 

prosecution. Accordingly, any error was harmless beyond a reasonable doubt. 

(Chapman v. California, supra, 386 U.S. at pp. 23, 24.) 
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DISPOSITION

 The judgment is affirmed. The petition for writ of habeas corpus, and the related 

request for judicial notice of the record on appeal, are denied. 

 _________________________ 

 Jenkins, J. 

We concur: 

_________________________ 

Pollak, Acting P. J. 

_________________________ 

Siggins, J.